A client recently asked me what is real life meaning of ESI (electronically stored information, the term used by the Federal Rules Of Evidence ”FRE”). In the old days I used to say “if it was relevant and available even if it was on the bottom on my shoe, cough it up”. Well, that may have been a bit too cute, but the point remains—evidence that is even potentially relevant needs to preserved and produced to the other side in litigation, even if it hurts your legal position. Only a little has changed with the amendments to the FRE. There are exceptions—you may not have to produce “inaccessible data”. But in the end, you may have to do discovery on e-stuff that you normally don’t think about. There are cases where even temporary cache files had to be produced. There is now case law that covers text messages.
In Southeastern Mechanical Services, Inc. v. Brody (M.D. Fla. Aug. 31, 2009) employees had to produce text messages from devices owned by the company and personally owned devices. Because the employees apparently “cleaned” the devices in this case, it turned into a destruction of evidence case. Beware, ESI could be just about anything. Plan, Prepare, Preserve and Produce.